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Two Quebec students with what is probably the most badass names recently won a small victory in Quebec Courts.

In Mofo Moko c. Ebay Canada Ltd. (French, but worth reading in its entirety), Plaintiffs are suing Ebay for loss of profit, or loss of opportunity, after Ebay’s untimely cancellation of their auction, which was nearing $50,000.

Plaintiffs filed their lawsuit in Montreal, which was promptly opposed by Ebay on the grounds that their user agreement specifies any litigation must be carried out in California.

The Court, however, points out that the User Agreement is 6 and a half pages when printed, written in a hardly understandable language.

The Agreement specifies that the law applicable to the contract is the law of Ontario and applicable Federal laws, meaning any lawsuit will have to be not only in California, but based on Canadian and Ontarian laws.

The Court concluded that the intention behind such a condition was to discourage lawsuits, and is excessive, unreasonable, and abusive, and, when found in a “contrat d’adhésion”, is null and void.

The present ruling only concerns Ebay’s Motion to Dismiss, which they lost. It will be interesting to see if the main suit ever gets carried to term.

News have been going around lately that Voltage Pictures is targeting thousands of IP addresses belonging to TekSavvy users for alleged copyright enforcement. Voltage is seeking a court order to force TekSavvy to disclose the identities of the users behind these IP addresses.

Everybody should know though that we have looked into all angles to determine what our position should be in this situation and after spending a significant amount of time and soliciting a considerable amount of advice from numerous respected sources, we found that we simply could not comment on the merits of the case. Our place is to ensure that we provide adequate notice and also to make known to others that these requests have occurred and that the best way to make sure to avoid being involved is to simply not engage in such activities. If somehow you end up involved and you feel its not right, the place to voice your concern is the hearing on Monday. If you intend to appear, please let us know also.

Now, I don’t think this is a particularly good response, although I see where this is coming from. You have here an independent ISP whose position in the market is catering to tech-savvy people. One might suppose that a larger proportion of its users engage in file sharing, compared to other mainstream ISPs. It would then be understandable that TekSavvy feels it needs to take position against illegal filesharing, as opposed to fighting for its users, so as to not seem like it condones the activities of its users.

That being said, I do think this position is misguided. TekSavvy doesn’t have to comment on the merits of the case. Last time around, in 2005, a similar disclosure request was rejected by the Court after the ISPs fought for their users. Ultimately, the argument retained by the Court was one of privacy: there had been too much time elapsed between the moment the rightholders obtained the IP addresses and the moment it asked for disclosure.

[43]If there is a lengthy delay between the time the request for the identities is made by the plaintiffs and the time the plaintiffs collect their information, there is a risk that the information as to identity may be inaccurate. Apparently this is because an IP address may not be associated with the same individual for long periods of time. Therefore it is possible that the privacy rights of innocent persons would be infringed and legal proceedings against such persons would be without justification. Thus the greatest care should be taken to avoid delay between the investigation and the request for information. Failure to take such care might well justify a court in refusing to make a disclosure order.

Apart from that, the Federal Court of Appeals pretty much overruled the other arguments of the lower court, which were based on the actual substance, or merits of the case.

The current case is set to resume in January, so one can hope that there is enough pressure for TekSavvy to reconsider its position. Ultimately, it is up to the company to look at the facts of the case and make a good legal and PR decision.